On August 2, 2010, I published a post titled, “Closing Time and Final Thoughts on the Future of Journalism.” At that time, I had enough of updating the blog daily and decided to hang my hat up – but not before leaving readers with some of my own thoughts about journalism, a major topic of this blog.

I signed off that post noting of journalism, “We need it for democracy to thrive. . . . Saving journalism is the greatest charge of this generation. It is up to us. While I don’t know what the end result will be, I hope that traditional journalism will thrive . . . .”

While I like the sentiment, that post was premature. Since then, I’ve published dozens of articles ranging from regulatory controls on the Internet to illegal searches of cell phones to freedom of speech. I’ve won an award and have been lucky enough to have some very bright folks offer me their insights on the blog. (I even won a FOIA appeal that reversed a FOIA officer’s holding that LWR did not constitute the “news media” for the purpose of FOIA!)

I started the blog at the beginning of the summer in 2010. I published a new article – with the hope of providing a no-nonsense, but fair point of view when it came to media, law, and technology news. That summer, I would leave my research fellowship at a non-profit every day and go to this quaint coffee shop in downtown Northampton, Massachusetts to research and write after work. I drank a lot of coffee – and I still do.

I’m not quite sure what prompted me to start going to that coffee shop and writing. I had always been interested in media and the following fall would enter law school. I think, in the end, it was just a desire to write and to learn about what I wanted to build my career around. It was the means.

(I was a bit bored too, and it seemed like something fun to do.)

In any event, I have a career now. Fittingly, I’m an attorney focusing on media law. In short, I’ve achieved the ends that I sought out to achieve by writing this blog. The means served their purpose: this blog taught me about media law issues and how to be a better writer.

Of course, I still love to read and write about media law issues. Luckily, I now get to spend my work days doing just that though as a result of having my dream job. By the time I’m home, I don’t have the energy left to do it all over again like I used to for the purposes of this blog. Instead, I like to write about other things, if I write at all.

It’s a bitter pill – saying goodbye to a blog that I have worked on for nearly four years. LWR has been a mainstay of my post-college career and, I think, set me on the course to achieving many of the things that I wanted to achieve after college. It is, in many respects, an idiosyncratic manifestation of the “me” I became after leaving college behind me. But, the time has come to step away from LWR.

Because LWR has focused so much on my main interest, I think it’s appropriate to end with my favorite passage from a U.S. Supreme Court case that touches on that interest: journalism and free speech. It’s a dissent by Justice Harlan in a case where a newspaperman was held in contempt after publishing articles and a cartoon suggesting that justices on the Colorado Supreme Court were not impartial.

In one of the first discussions digging into the meaning of the First Amendment in the Supreme Court, Justice Harlan explained, “It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.” I agree . . .

Best,

Matthew L. Schafer

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In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation. That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

by Matthew L. Schafer

Bill Keller of New York Times fame and Glenn Greenwald of NSA Leaks fame recently faced off in the Times. Others have summarized the exchange, so I will not do the same to any great extent. Frankly, you should skip the summaries and read the actual exchange.

To understand my point here though, you will need to know the broad outlines of their back-and-forth, which can be succinctly summarized. Keller believes, unsurprisingly, that journalists as part of their craft should objectively (or, if you prefer, impartially) report the news by not taking sides.

Greenwald, even more unsurprisingly, believes exactly the opposite. He rebuffs Keller’s suggestion that the Times is impartial, alleging instead that it is nationalistic. To Greenwald, the Times is no different than he is at the base level except to the extent that the Times took sides with the United States, instead of, like Greenwald, taking sides with the “truth.”

Both Keller and Greenwald argue that their brand of journalism is, ironically, “objectively” better than the other’s. Keller thinks that his version is better because it gives the reader a chance to decide whether, for example, waterboarding is torture without feeding the reader that loaded word at the outset. (Greenwald would just call it torture.)

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers. Isn’t that what we’re after at the end of the day? A more informed electorate? A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place?

Greenwald thinks his version better because it less impotent. It does not present information in the he-said she-said manner that we have all become so accustom to. Instead, it tests officials’ claims of truth in the fires of activism journalist, declaring at the end of the day whether those claims survived the forge or not.

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers. Isn’t that what we’re after at the end of the day? A more informed electorate? A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place? That is, what is truth and how should journalism trade in it?

In cases where journalists go after the truth and tell the reader that X is wrong but Y is right, there is little proof that the public is inclined to believe the journalist’s judgment as to the “ultimate truth.” We know from media studies, for example, that when readers are provided with information that is contrary to their views, they actually claw their erroneous beliefs closer to them. They hold on stronger and don’t let go.

We also know from media studies that readers are less likely to believe a news outlet that is foreign to them. They are less likely to believe a news outlet that is adverse to them. And, at the end of the day, what they do know is not that substantial and is mostly wrong.

Some of these may favor Keller’s approach (objectivity, for example, may be beneficial where the reader is unfamiliar with the source) and some may favor Greenwald’s (for example, his approach might be beneficial where someone agrees with him, but not otherwise.)

What Greenwald and Keller were really debating was what size of stick journalism should carry. They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation. That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

Of course, some stories will be easier to cover than others – some are more susceptible of being proven true or false. For example, it is no doubt easier to prove that the NSA was, in fact, stealing information regarding French telephone calls than it is to prove that one domestic policy choice is necessarily better than the other. Indeed, the NSA leaks are easily verified, which imbues credibility in the information itself. (Greenwald has the documents after all, and they often accompany such stories as primary sources for the companion articles.)

But journalism does not equate only to publishing stories about leaked information, and leaked information is not always the information that the citizenry needs the most or that is most beneficial to the citizenry. There are state house stories about budgets, Supreme Court stories about the extent of a woman’s right to choice, and international stories about whether certain treaties are in the nation’s best interests.

Greenwald’s view on journalism doesn’t graft as easily onto these types of stories as it does to stories about NSA leaks. Indeed, in this context, the mantra of being critical to the government is rather less useful. In fact, it provides almost no road signs for a journalist to follow if presented with a situation where reasonable people come to different conclusions based on the same available information.

It certainly provides absolutely no road signs for how a journalist can best interpret civic information for the public. For example, even Greenwald’s activist/watchdog approach to journalism in the context of the NSA leaks, does not help us get at the deeper (and more important) civic question of whether, as a policy, we should be doing all that spying we know we are doing.

The point is that it is journalism’s job to keep an eye on the government – journalism a la Glenn Greenwald. But that is just one part of journalism’s job. On a broader level, journalism is a curator – and it is becoming more so every day. As Brian Stelter pointed out several years ago but not too long ago to be obsolete:

The ‘news’ that is not fit to print gets through to people anyway these days, through 24-hour cable gasbags, partisan talk radio hosts and chain e-mails, blogs and Web sites . . . What readers need now . . . are honest referees who can help ordinary readers sort out fact from fiction.

Stelter is right, we need “honest referees.” But what do we mean by that phrase? That is what Keller and Greenwald should have been debating. They were so focused on what type of journalism is the “better” type of journalism – activist journalism or activist-lite journalism, that they forgot the more interesting and important question: How can journalists be better stewards of the public’s trust?

I don’t have the answer, but whatever the answer is, certainly does not lie within the four corners of the now facile debate about objective journalism versus activist journalism.

Instead, each polemic will demand its own unique approach. Some claims may not be readily provable as either true or false. In such a circumstance the best journalism can do is debunk or debase those views that are surely outlandish, elevate those that wash the best with what we know at the time, and suggest to the reader that the “real” answer remains elusive.

On the other hand, some claims will be provable. In those instances, I think both Keller and Greenwald would agree that reporters should debunk false claims. It seems that they are unlikely to agree, however, as to how acerbic those debunkings should be. And, really, there is probably merit to both opinions.

In both cases though, whether journalists are hotly antagonistic to the government seems to be the least important question. Indeed, it is only important if journalists become so impotent that there is no watchdog press at all anymore. We’re not quite there yet – contrary to what many would argue.

In short, the real debate about journalism isn’t whether journalists should be objective or opinionated; patriotic or insubordinate; apologetic or antagonistic. Instead, the real debate is how journalists, recognizing the context of any given situation, can clearly and accurate deal in “truth” in such a way that all types of readers can walk away more knowledgeable about their world.

What Greenwald and Keller were really debating was what size of stick journalism should carry. They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

The OPEN Government Act of 2007 was passed to ensure that “anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA.”

Under the Freedom of Information Act, anyone can request information from the government. Depending on who requests the information, however, some requesters are given preferential treatment. Such treatment comes in a variety of forms, one of the most important being a waiver of fees if one is a “representative of the news media” for searching for and reviewing documents.

That term, “representatives of the news media,” was given an extremely narrow construction since the late 1980s, which required that a journalist show that he or she was working for an entity that was organized to disseminate news. As a result, Congress in 2007 attempted to broaden that definition to include all different types of journalists who are engaged in the function of gathering and disseminating news no matter if they have an institutional connection.

At the time, the Digital Media Law Project called the OPEN Government Act “striking” in that it would significantly “benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to ‘representatives of the news media.’”

The Department of Justice was less than enthused by the Act. In fact, the DoJ vigorously opposed the Act. In the run up to its passage, the DoJ employed various adjectives like “grave,” “draconian,” and “misguided” to protest the Act’s provisions, including the provisions that were intended to give fee waivers to bloggers and independent journalists.

More specifically, the DoJ was concerned that discarding the institutional requirement would cause a flood of requesters to claim to be representatives of the news media because they had a some degree of demonstrable publication history or claimed that they intended to publish information resulting from the their FOIA request.

Moreover, the DoJ also worried that the Act, even where the requester showed no prior publication history, would require the DoJ to inquire into “the requestor’s stated intent at the time the request is made to distribute information to a reasonably broad audience,” which would eviscerate any limiting power the “representative of the news media” language once had.

In short, the DoJ was of the opinion that the Act expanded “the definition of ‘representative of the news media,’ and thereby exempts a larger class of requesters from the obligation to pay what can sometimes be quite significant fees assessed for searching for responsive documents.”

Despite the DoJ’s concerns, the Act passed. Nonetheless the DoJ has continued to ignore the Act’s provisions. In fact, the DoJ’s own Freedom of Information Act regulations still require that a requester show he or she is affiliated with a news organization to obtain a fee waiver.

Concerned by this fact, Reps. Darrell Issa and Elijah Cummings sent a letter to the DoJ, “[I]t is unknown whether agencies are complying with the Attorney General ‘s presumption of openness or the significant changes in fees and requester classes under the OPEN Government Act.”

The Representatives also noted, “[T]he OPEN Government Act broadens the types of requesters who may qualify for a fee waiver under FOIA. Unfortunately, not all agencies appear to be complying with FOIA’s fee requirements.”

In an about-face that would make even the best-flipflopper blush, the DoJ, now under the Obama administration, responded that the Act does not mean what the Act actually says it does and does not even mean what the DoJ said it meant at the time the Act was passed.

“As an initial matter, we respectfully note that it is not technically correct that, as your letter suggests, the OPEN Government Act ‘broadens the type of requesters who may qualify for a fee waiver under the FOIA,'” the DoJ said in response to the Representatives. “Rather, the OPEN Government Act codified the definition of ‘representative of the news media,’ which is a fee category.'”[1]

Thus, on the one hand, the DoJ explained on passage of the Act that it “exempt[ed] a larger class of requesters.” On the other hand, the DoJ told Congress that the Act does not necessarily “broaden[] the type of requesters who may qualify.”

The fact of the matter – technicalities aside – is that nearly everyone agrees that the OPEN Government Act was intended to liberalize the fee waiver provisions relating to representatives of the news media. Unfortunately, bloggers and independent journalists are still being denied such waivers. This amounts to willful blindness.

The OPEN Government Act was passed with a lofty goal in mind – namely to “grant[] the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.” Congress tried to achieve this goal by defining for itself who was a “representative of the news media.” It is time for the DoJ recognize this by revising its own regulations and granting fee waivers to people engaged in the act of journalism under whatever banner.

[1] It could be possible that the DoJ is pointing out that the Act did not add another whole category of requesters. But, this is form over substance. The Act, as the DoJ has recognized elsewhere did expand the applicability of the fee waivers to a larger class of representatives of the news media, e.g., independent journalists.